Excerpt:.....made for setting aside abatement of appeal within prescribed period - whether ignorance of death was sufficient cause for condensation of delay - as per precedent set by apex court applicant had to allege and establish facts which would be sufficient reason for not making application for bringing on record legal representatives of deceased within time - if no such facts alleged none can be established and in that case court cannot set aside abatement - mere allegation that appellant ignorant of death of respondent cannot be regarded as sufficient cause.
- - on the other hand, it must also be recognised that in every case it would be open to a party who is guilty of delay due to negligence that there was no reason for him to be negligent as he could not have allowed his main..........did not know of the death of respondent question to be considered is whether such ignorance of death was sufficient cause for the condensation of the delay in making the applications. in union of india v. ram char an, : [1964]3scr467 , the following propositions were laid down (1) on the one hand, it is not the duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party. (2) on the other hand, the mere fact that the appellant came to know of the respondent's death belatedly will by itself not justify his application for setting aside the abatement. (3) the middle position that emerges in paragraph 12 of the judgment is that the applicant had to allege and establish facts which, in the view of the court, would be sufficient.....

Judgment:

V.S. Deshpande, J.

(2) The respondent died on the 24th August, 1977. -The appellant says he was ignorant of the respondent's death. Consequently, the appeal abated as appellant did not make application within 90 days to join the legal representatives of the deceased respondent. The ignorance of the appellant of the death of the respondent continued thereafter and no application was made by him for setting aside the abatement of the appeal within the prescribed period of 60 days. On the 24th February, 1978 the appellant made two applications, CMs 183 and 184 of 1978 ; the first for bringing the legal representatives of the deceased respondent on record and second for setting aside the abatement of the appeal on the ground that the appellant was ignorant of the death of the deceased respondent and this constituted sufficient cause for the delay in making these applications.

(2) The relevant provision to be construed in considering these applications is Order Xxii rule 4 (5), as amended in 1976, which is( )

(3) Two questions have to be considered, namely, (1) a question of fact, as to whether the appellant was in fact ignorant of the death of the respondent and (2) a question of law, whether this constituted sufficient cause for the delay in making these applications in the eye of law. (In paras 4 & 5, evidence is discussed that appellants were not ignorant)

(4) Assuming that the appellant did not know of the death of respondent question to be considered is whether such ignorance of death was Sufficient cause for the condensation of the delay in making the applications. In Union of India v. Ram Char an, : [1964]3SCR467 , the following propositions were laid down (1) On the one hand, it is not the duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party. (2) On the other hand, the mere fact that the appellant came to know of the respondent's death belatedly will by itself not justify his application for setting aside the abatement. (3) The middle position that emerges in paragraph 12 of the judgment is that the applicant had to allege and establish facts which, in the view of the Court, would be sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, none can be established and in that case the Court cannot set aside the abatement. In paragraph 13 it is stated that the applicant must allege why he did not know the death of the respondent earlier or why he could not know it earlier despite his efforts. His mere allegation that he was ignorant of the death of the respondent cannot be regarded as a sufficient cause. The correctness of the reasons given by the applicant can be challenged by the other party.

(5) These observations were intended to keep a balance of justice between the parties. On the one hand, the Court was anxious that the main case should be decided on merits and should not go off tangent by a side wind as it were due to abatement. After all a party cannot have any interest in getting his own suit abated by not making an application for the substitution of the legal representatives of the opposite party within time. The provision for such substitution is some what technical and though it is necessary to secure the interests of the legal representatives, delay on the part of the plaintiff or appellant should not result in the demise of the main claim without decision on merits. On the other hand, it must also be recognised that in every case it would be open to a party who is guilty of delay due to negligence that there was no reason for him to be negligent as he could not have allowed his main claim to be defeated by his failure to apply for substitution of the legal representatives of the deceased respondent. Accepting such an argument-would mean that in every case the Court must believe whatever Explanationn is given for the delay. But the anxiety of the Court not to allow the merits of the, case to suffer due to abatement does not allow it to ignore the obligation of the plaintiff or the appellant to be diligent. The law of limitation itself acts as a hardship but nevertheless it is implemented by the Courts because diligence on the part of the parties to litigation has to be enforced by it.

(6) The truth is that while a party would not deliberately delay in taking steps to bring the legal representatives of the deceased opposite party on record often he is not fully aware of the consequences of the delay on his part. He does not realise the importance of diligance. It is often thought that all of us in our life delay in taking action or decision and suffer by such delay. Merely because we have no interest in delaying actions favorable to us does not mean that we are never guilty of such delay. For the same reason, plaintiffs and appellants who are guilty of delay even without being interested in being negligent have to suffer for the consequences of their negligence.

(7) In the Fifty-fourth Report of the Law Commission on the Code of Civil Procedure, 1908 made in February 1978 the question of Order Xxii rule 4 and the ignorance of death was considered at pages 194-195. The Commission observed that the question whether the ignorance on the part of the party of the death of other party should be sufficient cause for the condensation of delay in the substitution of legal representatives of the deceased has arisen in several eases in relation to the power of the Court to excuse the delay under section 5 of the Limitation Act. The Commission also noted that 'how far ignorance of the death of the party concerned is a sufficient ground would depend on the facts of each case' (Union of, India v. Ram Char an, : [1964]3SCR467 . The Commission then observed as follows : 'It was for the last-mentioned reason that the earlier Commission, in its Report on the Code, after discussing the position as above, considered it unnecessary to make an express provision as to 'ignorance of death as a sufficient ground. At one stage we were inclined to think of a solution whereunder due regard could be had to the fact of ignorance of death, while considering an application under section 5, Limitation Act, for condensation of delay in respect of an application for setting aside the abatement. This could be achieved by the insertion of the following sub-rule in Order 22, rule 4-(......)

(8) The amendment of the Civil Procedure Code . in 1976 reproduces the recommendation by the Law Commission verbatim by adding sub-rule (5) : (b) to rule 4 of order 22.. It would appear that, on the one hand, the amendment has confirmed the view of the Supreme Court in Ram Charon's case that the question whether the ignorance of death would constitute sufficient cause would depend on the facts of each case. That is to say, it is the circumstances of the case which would make the Court to believe or disbelieve that such ignorance was really the cause of the delay It is not, thereforee, a proposition of law that ignorance of death must always be the cause for the delay. On the other hand, it is a question of fact whether in a particular case it really explained the delay. It would also appear that the following observation of the Supreme Court in paragraph 9 of Ram Charan's case, namely, 'but it does not mean that the mere fact of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement; that is not the law' could create a doubt as to whether the ignorance of the death of a party would at all be sufficient cause for the condensation of the delay. With a view to remove such a doubt it has now been enacted by amendment that the Court shall have due regard to the fact of such ignorance, if proved, in considering the application for the condensation of delay. That is to say, the ignorance of the death, if proved, will have to be considered by the Court and if the Court is of the view that it has contributed to the delay, then the Court would be justified in accepting it as sufficient cause for the condensation of the delay.

(9) The second question, namely, the question of law does not arise in the present case because of our finding on the first question of fact that the appellant knew of the death of the respondent and yet was negligent in making the application.

(10) Applications C.M. Nos. 183 and 184 of 1978 are, thereforee, both dismissed as being barred by time. The result is that the appeal itself abates and is dismissed as having abated. No order as to costs.